JOHN BUSCH et al., Plaintiffs, v. MICHAEL K. MISON, Defendant-Appellee and Counterplaintiff-Appellee and Plaintiff-Appellee (John Busch, Counter-defendant-Appellant and Defendant-Appellant).
No. 1-07-2112
First District (1st Division)
September 15, 2008
385 Ill. App. 3d 620
At the least, defense counsel preserved Burnett‘s right to appeal from his sentence by filing the motion to reconsider. Burnett does not claim he was deprived of his right to consult with his lawyer concerning the motion to reconsider. See Owens, 384 Ill. App. 3d at 671. In sum, Burnett makes no showing that his lawyer‘s failure to appear at the hearing or that his own absence from it caused him any harm.
We find nothing in this record to support Burnett‘s claims that he was denied effective assistance of counsel. Our holding in this case, however, should not be taken as approval of the procedure the trial court followed when it denied the motion to reconsider in the absence of both defendant and his lawyer.
For the reasons stated above, no matter which line of Illinois Supreme Court cases we follow, we find the trial court‘s sentence and ruling on the motion to reconsider sentence must be affirmed.
Affirmed.
R. GORDON, P.J., and GARCIA, J., concur.
Beverly & Pause, of Chicago (Justin D. Wine, of counsel), for appellee.
PRESIDING JUSTICE ROBERT E. GORDON delivered the opinion of the court:
This appeal concerns the legality of a rejection of an arbitration award under the mandatory arbitration procedure (
Plaintiffs John Busch and Sheb‘tufi Kushma brought a personal injury action against defendant Michael K. Mison, alleging Mison negligently caused them injuries as a result of an automobile collision. Mison brought a separate personal injury suit against Busch, seeking damages for injuries sustained in the same collision. The circuit court consolidated the separate actions for “purposes of discovery and trial.” Then the consolidated action was submitted to arbitration. One consolidated award was entered. Mison‘s lawyers filed an
The circuit court held
“Whether Illinois
Supreme Court Rule 93(a) requires a party who is both a plaintiff and a defendant in two separately filed personal injury lawsuits stemming from an auto accident, which were consolidated for purposes of discovery and trial, to file separate notices of rejection of the separate arbitration awards in order to preserve his right to proceed to trial in each lawsuit.”
BACKGROUND
This appeal stems from two separate lawsuits filed on behalf of individuals involved in a two-car motor vehicle collision. On December 30, 2004, Busch and Mison were involved in a motor vehicle collision at the intersection of Kinzie and LaSalle Streets in Chicago. Kushma was a passenger in Busch‘s vehicle.
On March 10, 2005, Busch and Kushma brought a negligence suit against Mison in the law division of the circuit court of Cook County (law division suit), seeking damages for personal injuries they sustained in the accident. Mison filed a counterclaim for contribution against Busch. The law firm of Beverly & Pause represented Mison as the defendant in the law division suit. On June 27, 2006, Mison filed a separate suit against Busch in the municipal division of the circuit court (municipal division suit), seeking damages for personal injuries he sustained in the same collision. The law firm of Burnes & Libman represented Mison as the plaintiff in the municipal division suit. After Mison filed a motion for consolidation, the trial court consolidated the cases “for the purposes of discovery and trial.”
On February 1, 2007, the consolidated case proceeded to mandatory arbitration. Following a hearing, the two of the three arbitrators entered an award finding “in favor of Busch and against Mison for [$8,500] and for Kushma against Mison for [$6,000].” In the same order, the arbitrators found “against Mison as a plaintiff and for Busch as a defendant.” The arbitrators rejected all of the counterclaims. As noted, there was only one award.
On February 26, 2007, Mison filed a single notice of rejection of the arbitration award pursuant to
On June 11, 2007, the trial court denied both motions. The trial court also rejected Busch‘s interpretation of
ANALYSIS
An interlocutory appeal pursuant to
“Within 30 days after the filing of an award with the clerk of the court, and upon payment to the clerk of the court of the sum of $200 for awards of $30,000 or less or $500 for awards greater than $30,000, any party who was present at the arbitration hearing, either in person or by counsel, may file with the clerk a written notice of rejection of the award and request to proceed to trial, together with a certificate of service of such notice on all other parties. The filing of a single rejection shall be sufficient to enable all parties except a party who has been debarred from rejecting the award to proceed to trial on all issues of the case without the necessity of each party filing a separate rejection.”
166 Ill. 2d R. 93(a) .
The parties agree resolution of the certified question depends in part on what impact, if any, the trial court‘s consolidation of the two separate lawsuits “for the purposes of discovery and trial” had on Mison‘s rejection of the arbitration award under
Section 2-1006 of the Illinois Code of Civil Procedure (
Busch contends that because the two suits were consolidated only for judicial economy and convenience, Busch and Kushma—the plaintiffs in the law division suit—were not bound by Mison‘s notice of rejection of the arbitration award entered only in the municipal division suit. See Ellis v. AAR Parts Trading, Inc., 357 Ill. App. 3d 723, 731 (2005) (because the cases were consolidated for discovery only, the Pinol plaintiffs were “not bound by orders entered in the Ellis case“); Nationwide Mutual Insurance Co. v. Filos, 285 Ill. App. 3d 528, 532 (1996) (consolidation done only for convenience “did not merge the causes into a single suit, or change the rights of the parties, or make those who were parties in one suit parties in another“); Kassnel v. Village of Rosemont, 135 Ill. App. 3d 361 (1985).
Mison counters that the record reflects the consolidation of the lawsuits resulted in the two separate suits being merged into one action and losing their separate identities. Mison contends that because the two suits were consolidated into one action, his notice of rejection was sufficient to require all of the issues in the case to proceed to trial.
We agree with Mison.
In Northwest Water Comm‘n v. Carlo V. Santucci, Inc., 162 Ill. App. 3d 877, 891 (1987), the court held it was clear “the causes of action herein were consolidated for a much broader reason than mere convenience, i.e., for the purposes of discovery and trial.” The water commission filed an ” ‘Emergency Motion *** To Consolidate Cases,’ seeking to combine its action against Santucci with Price‘s suit for an accounting ‘for purposes of discovery and trial.’ ” Northwest Water Comm‘n, 162 Ill. App. 3d at 882. According to the motion to consolidate, ” ‘[t]he consolidation of these actions would eliminate a multiplicity of suits, prevent unnecessary litigation, and avoid duplication of efforts and expense, thereby conserving the court‘s time and
The record here clearly reflects the trial court consolidated the two separately filed suits into one action that was disposed of by one arbitration award with three distinct findings, not two separate arbitration awards as the certified question presupposes.
Mison‘s motion to consolidate contended that since “both cases arise from the same set of facts and involve the same witnesses,” both lawsuits should “be consolidated into one.” (Emphasis added.) In response, the trial court consolidated the law division suit and the municipal division suit “for the purposes of discovery and trial.” We find the trial court‘s consolidation order indicates “the rights of all of the parties would be finally litigated and settled in one action.” See Northwest Water Comm‘n, 162 Ill. App. 3d at 891. Our conclusion is supported by the fact that the arbitrators entered only one award with three distinct findings, not separate arbitration awards: “We the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award.” (Emphasis added.) That is, “award,” not “awards.” Had the lawsuits gone to trial, judicial economy would have called for one trial, one jury, and one judge.
Our supreme court has recognized that “[o]nce the arbitration panel has made its award, the parties must accept or reject the award in its entirety.” Cruz v. Northwestern Chrysler Plymouth Sales, Inc., 179 Ill. 2d 271, 279 (1997). Relying on
We read
In this case, Mison‘s contentions are that his rejection with the municipal number only rejected the entire award. That is the way he captioned his rejection. Although the single arbitration award in the consolidated case contained three distinct findings, Mison‘s notice of
The following facts support our conclusion that Mison‘s attorneys—Burnes & Libman—intended to reject the entire award. To rule otherwise could require the filing of many separate notices of rejection.
Mison‘s personal injury lawyers would not have had the authority to reject the arbitrators’ award on the law division case where Mison is a defendant and represented by insurance counsel.
If Mison‘s rejection showed the consolidated case number, it clearly would have been a valid rejection based on the arguments of all of the parties.
Although the certified question is carelessly phrased, we now proceed to answer it as the supreme court has ordered—“on the merits.” Our conclusion reaches the certified questions and beyond it to the trial court‘s underlying orders. See Thompson v. Gordon, 221 Ill. 2d 414, 434 (2006) (“The appellate court also did not err in going beyond the certified questions to consider the propriety of the trial court‘s underlying order striking Ramisch‘s affidavit“). See also Walker v. Carnival Cruise Lines, Inc., 383 Ill. App. 3d 129, 133 (2008) (“However, in the interest of judicial economy and reaching an equitable result, a reviewing court may go beyond the certified question and consider the appropriateness of the order giving rise to the appeal“).
This court holds that in a case consolidated for discovery and trial,
In addition, I agree completely with the special concurrence, and particularly with how the special concurrence explained and distinguished Cruz, 179 Ill. 2d at 279. Justice Garcia stated in his special concurrence that I interpreted Cruz less broadly than he did. I think we are on the exact same page. I agree with him that “[i]n Cruz, the [supreme] court never addressed the requirements of a rejection notice,” that “the situation in Cruz *** is not present here,” and that Cruz supports our conclusion that “where a rejection notice of an arbitration award is filed, the notice is a rejection of the award in its entirety.” 385 Ill. App. 3d at 629-30.
We affirm the decision of the circuit court of Cook County.
Affirmed.
JUSTICE WOLFSON, dissenting:
I agree we should reach the issues in this case. Considerations of judicial economy persuade me we should put aside the fact that addressing the certified question directly, on its merits, does nothing to resolve the rejection issue ruled on by the trial court. The certified question assumes the existence of “separate arbitration awards.” There was only one award, with three findings.
The majority finesses the precise wording of the certified question to address an issue never before decided by a reported decision in this state. That is, is a mandatory arbitration rejection effective when it clearly is intended to apply only to one of several discrete findings in the arbitration award? I believe the correct answer to that question is no.
There is nothing surprising or unexpected about multiple claims being resolved in a single award, as was done here.
The arbitrators adhered to
Now, then, can rejecting only one of the three findings be a rejection of the entire award? Once an award is made, “the parties must accept or reject the award in its entirety.” (Emphasis added.) Cruz v. Northwestern Chrysler Plymouth Sales, Inc., 179 Ill. 2d 271, 279 (1997). That is not what Mison‘s lawyers did.
I read
The record reflects Mison‘s attorneys in the municipal division suit—Burnes & Libman—clearly intended to reject only the arbitrators’ finding against Mison as a “plaintiff” and for Busch as a “defendant” when they filed the notice of rejection. That is the way they captioned their notice. Although the single arbitration award in
In sum, the following facts support the conclusion that Mison‘s attorneys—Burnes & Libman—intended to reject only the arbitrators’ findings with regard to Mison as plaintiff and Busch as defendant in the municipal division suit, not all of the findings reached by the arbitrators:
- Mison‘s attorneys in the law division suit where he was a defendant—Beverly & Pause—did not file a separate notice of rejection.
- Mison‘s notice of rejection contains only the caption and case number for the municipal division suit filed by Mison; that is Mison as “plaintiff,” Busch as “defendant.” He rejected only the award “in favor of the defendant,” that is, Busch.
- Mison did not include any reference to the arbitrators’ findings with regard to the law division suit or the counterclaims in the notice of rejection.
- Mison did not serve the notice of rejection on Kushma individually or on Kushma‘s attorneys in the law division suit.
Although I agree that all of the claims became part of one case when the separate suits were consolidated for the purposes of discovery and trial, I would find Rules
If Mison‘s insurance company lawyers wanted to reject the portion of the award that granted damages to Busch and Kushma, they easily could have done so. It takes no great stretch of the imagination to see that Burnes & Libman were not the least bit concerned about a judgment against Mison in his role as defendant in the law division lawsuit. Going before a jury only on the Mison v. Busch claim would increase chances for recovery.
I believe that in a case consolidated for discovery and trial
Nothing in the relevant supreme court rules authorizes piecemeal rejection. We take the rules as we find them. We should not rewrite them to reach a favored result. I respectfully dissent.
JUSTICE GARCIA, specially concurring:
I write separately because I read the supreme court‘s decision in Cruz v. Northwestern Chrysler Plymouth Sales, Inc., 179 Ill. 2d 271, 688 N.E.2d 653 (1997), more broadly than Justice Gordon. I also find words of caution necessary regarding the view of our esteemed colleague in dissent.
Justice Wolfson‘s position, that a rejection notice may be challenged as a nullity where the rejection notice lists one of several findings in an arbitration award, would open the door to more litigation on issues collateral to the claims of the parties. Counsel henceforth seeking to bar rejections would undoubtedly come up with creative arguments to challenge carelessly phrased (or not so carelessly phrased) rejection notices. To open the door to such challenges is, I submit, at odds with the stated objective of mandatory court-annexed arbitration of making litigation less “costly, complicated and time consuming.” Cruz, 179 Ill. 2d at 280.
The language the dissent quotes from Cruz, that ” ‘the parties must accept or reject the award in its entirety,’ ” is no barrier to our conclusion that the rejection notice here satisfies
I submit, the Cruz statement that an award must be accepted or rejected in its entirety means simply what it says—that where a rejection notice of an arbitration award is filed, the notice is a rejection of
Justice Wolfson seeks to prove too much in his claim that “Mison‘s attorneys *** intended to reject only the arbitrators’ findings with regard to *** the municipal division suit.” (Emphasis added.) 385 Ill. App. 3d at 628. That is a conclusion the dissent draws. Reasonable minds differ as to whether that is the only conclusion that can be drawn based upon the facts the dissent marshals. Irrefutable, however, is the clear intent manifested by Mison‘s rejection notice to proceed to trial.